Appeal, No. 73, January T., 1952, from judgment of Court of Common Pleas of Northampton County, Sept. T., 1951, No. 16, in case of Althrope Meixell v. Borough Council of Borough of Hellertown, Northampton County. Judgment reversed; reargument refused May 26, 1952.
Philip J. Gahagan, for appellant.
Milton J. Goodman, with him Bernard V. O'Hare, Jr., for appellee.
Before Drew, C.j., Stern, Stearne, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
The court below sustained defendant's preliminary objections to plaintiff's complaint in mandamus and dismissed the complaint. From this order plaintiff has appealed.
Where those present and validly voting are sufficient to constitute a quorum, does the vote of a majority of those ballots which have been validly cast, legally bind the Council? The Borough Council of Hellertown, consisting of 9 members, met to elect a Burgess.*fn* A Burgess receives a salary of $400 a year; a Councilman receives $10 for each regular monthly meeting he attends, a maximum of $120 a year. The only pertinent provision of the Act of July 10, 1947 (known as The Borough Code) P.L. 1621, § 23, 53 P.S. 12891, provides as follows: "A majority of the entire membership of council shall constitute a quorum." Two of the 9 councilmen cast a questionable vote; each voted for himself for the office of Burgess. Each of these votes was undoubtedly illegal and void and therefore a nullity: Genkinger v. New Castle, 368 Pa. 547, 84 A.2d 303; Reckner v. School District, 341 Pa. 375, 19 A.2d 402; Com. v. Raudenbush, 249 Pa. 86, 94 A. 555; Com. ex rel. McCreary v. Major, 343 Pa. 355, 22 A.2d 686. " It is a well and wisely established principle of public policy in Pennsylvania that a public official may not use his official power to further his own interests... and a councilman is disqualified from voting in any matter or proceedings where he has a direct personal or pecuniary interest*fn**...": Genkinger v. New Castle, 368 Pa. supra; and his vote is void: Com. v. Raudenbush,
Pa. supra; Reckner v. School District, 341 Pa. supra.
In Reckner v. School District, 341 Pa. supra, this Court held that a Director of a Third Class School District may not legally vote in favor of a resolution of the Board increasing his own salary as secretary thereof, and if his vote is the deciding vote, the resolution fails. Speaking through Justice (now Chief Justice) DREW, we said: "In Commonwealth v. Raudenbush, 249 Pa. 86, this Court held that a councilman could not legally cast the deciding vote in favor of accepting his own resignation so that he might be employed by the city in a salaried position. It was there said: (pp. 88-89) 'We are of opinion that Raudenbush could not vote for the acceptance of his own resignation which, therefore, never became effective. In 28 Cyc. 337, citing numerous authorities to sustain the text, it is said: "There is a general rule of law that no member of a governing body shall vote on any question involving his... pecuniary interest, if that be immediate, particular, and distinct from the public interest." ['A member of a municipal council is disqualified from voting in proceedings involving his personal or pecuniary interest: 20 Am. & Eng. Ency. of Law (2d ed.) 1214.'] It is against public policy for a representative of a municipality to vote in its legislative body on any matter which affects him individually.'"
In Com. ex rel. McCreary v. Major, 343 Pa. supra, this Court went so far as to hold that unless authorized by statute, public policy prohibits the members of Council from using their official appointing power as Councilmen to appoint themselves members of the Board of the Authority even though each individual member who was appointed to the Board did not vote for his own appointment. Mr. Justice DREW said, inter alia, page 361, "A councilman cannot act for the municipality
and at the same time act for himself individually... He is a trustee for the municipality and he may not deal with himself in any matter which concerns it [citing numerous supporting authorities]..."
Since the vote of 2 councilmen was illegal and void, neither their vote nor their presence should be counted in computing a quorum or a majority. "Members having an interest are generally excluded in counting a quorum." McQuillen, Municipal Corporations, 3rd ed., vol. 4, Council Meeting, page 505; City of Fort Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558, 32 N.E. 215; Oconto County v. Hall, 47 Wis. 208, 2 N.W. 291; Woodward v. City of Wakefield, 236 Mich. 417, 210 N.W. 322.
"Ballots which have been cast, but which on account of their marking or other reason cannot be counted as votes, should be excluded... and not be considered in determining whether the proposition has received the requisite majority..." 29 C.J.S. 352, § 242.
"As a general rule, all the votes cast in the manner specified by law, by duly qualified voters, must be counted. The rule applies, in the absence of fraud or a valid statute to the contrary.... It does not apply, however, where the ballot or vote is for any reason invalid or void...": 29 C.J.S. 329, § 227.
"The weight of authority adheres to the view that... blank and illegal ballots should be rejected in computing the number of votes." 18 Am. Jur. 342, § 246.
That left 7 valid votes -- more than a quorum. Of those 7 qualified and valid votes, 4 voted for Meixell for Burgess, 2 for Councilman Judd, and 1 for Councilman Abel. A quorum being present and legally voting, and Meixell having received a majority of all the legal votes cast, he was duly elected Burgess. This is consonant with every-day experience and common sense and is supported by decisions of this Court and by
leading text writers and authorities from many of the highest courts of our sister states: Com. ex rel. Fortney v. Wozney, 326 Pa. 494, 192 A. 648; Commonwealth v. Fleming, 23 Pa. Superior Ct. 404; 29 C.J.S. 329, § 227; 352, § 242; 18 Am. Jur. 342, § 246; McQuillen, Municipal Corp., 3rd ed., vol. 4, p. 505; City of Fort Wayne v. Lake Shore & M. S. Ry. Co., 132 Ind. 558, 32 N.E. 215; Oconto County v. Hall, 47 Wis. 208 2 N.W. 291; Woodward v. City of Wakefield, 236 Mich. 417, 210 N.W. 322; State of Washington ex rel. Short v. Clausen, 72 Wash. 409, 130 Pac. 479; Murdoch v. Strange, 99 Md. 89, 57 A. 628; People ex rel. Beasley v. Sausalito, 106 Cal. 500, 39 Pac. 937; Hicks v. Krigbaum, 13 Ariz. 237, 108 Pac. 482; State ex rel. Hocknell v. Roper, 47 Neb. 417, 66 N.W. 539; Launtz v. People, 113 Ill. 137; Attorney-General v. Shepard, ...